The legacy of Justice O’Connor … and a justice for all

Representing conservative issues, she was firmly a states’ rights advocate, and was the swinging vote to uphold both the “three strikes and you’re out law” and to approve the use of public funding for vouchers given to children to attend private schools. In December 2000, she cast what was the deciding vote that essentially elected George W. Bush to his first term.

Citing the First Amendment freedom of association clause, she was the swinging vote that allowed the Boy Scouts to exclude gays. But, she also was the swinging vote that not only struck down a Texas law banning homosexual activity, but also forcefully stated that gays have a constitutional right of privacy.

On liberal issues, she consistently voted in the majority in several 5-4 decisions to uphold abortion-rights cases; was the deciding vote to declare school-sponsored prayer and religious displays on public lands unconstitutional; upheld the rights of disabled people to sue states; and determined that affirmative action in university admissions criteria was constitutional.

Her centrist views in a divided court often forced other justices to modify their own views in order to gain her vote. On dozens of critical social issues, “she held the balance on whether the country would tilt all the way to the right or try to find a compromise between ideological poles,” said Kathleen Sullivan, professor of Constitutional Law at Stanford.

For more than two decades, said Justice Antonin Scalia, perhaps the most conservative justice on the Supreme Court, “she shaped the jurisprudence of this court more than any other associate justice”. But, that reputation for independence and being the swing vote also brought her scorn. O’Connor’s role on the court left the perception among many legal scholars that she was opportunistic and lacked an intellectual honesty. Dr Charles Kessler, professor of government at Claremont-McKenna College, told the Arizona Republic, “Her dilemma is that she’s made a principle of not having a principle”.

Justice O’Connor - a scratch golfer, who also enjoyed tennis and whitewater rafting - did not retire because of her age, physical or medical condition, or because she was mentally tired, but because of a long-standing commitment to her family. Known for treating her staff and co-workers as beloved members of an extended family, she retired to care for her husband, also a Stanford Law graduate, who has Alzheimer’s Disease.

Part of President Bush’s legacy will be what he does with the nomination for Justice O’Connor’s replacement. If he continues to disregard the advice of those who aren’t his closest political advisors and sticks to his promise to nominate someone acceptable to the evangelical right-wing of his party, his legacy may be further tarnished. Not only would he show disrespect for the legacy of Justice O’Connor, but will have set into motion a political battle that may eventually lead not only to a greater division in the country, but of a Supreme Court that may be responsible for a further reduction of constitutional freedoms.